EEOC and Mediation
Mediation is a form of alternative dispute resolution ("ADR"), which is an alternative to litigation. The Equal Employment Opportunity Commission ("EEOC") offers mediation free to people who file complaints with the agency. There are good reason to select mediation and also reasons against. On the EEOC's website the following is listed as reasons to select mediation:
-It's free
- It's fair and neutral as the parties have an equal say in the process and decide settlement terms, not the mediator. There is no determination of guilt or innocence in the process.
-it saves time and money as mediation usually occurs early in the charge process, and many mediations are completed in one meeting. Legal or other representation is optional but not required.
-It's confidential as the EEOC requires that all parties sign a confidentiality agreement. Information disclosed during mediation will not be revealed to anyone, including other EEOC investigative or legal staff.
There are a few reason not to select mediation however.
First, by avoiding litigation, the company is the one really saving money and thus the savings is given to them. The EEOC will investigate your charge for free and the company has to pay an attorney to defend the charge of discrimination.
Second, many facts don't come out in mediation because there has not been an opportunity to fully discover evidence the other side may have. Therefore, a complainant may be settling a claim without knowing all the facts and may have a much better case in reality than they realize.
Lastly, during mediation the complainant lays out his case and the employer has an opportunity to hear the entire case and therefore if the parties can't come to an agreement, the employer can draft their defense based on hearing the entire case.
In sexual harassment cases, there is usually a great deal of evidence in the form of e-mails and cell phone records which won't be produced at mediation. I believe it foolish to negotiate a settlement if one believes that evidence exists which will have to be produced during discovery.
